The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-04-17
C0NSANGUINEOUS MARRIAGES.
A Decision Bearing on the Legality, in the
This State, of Marriages of First Cousins.

Special to the indianapolis Journal
TERRE HAUTE, April 16-A case has just
been decided IN the Circuit Court, here. in which
is involved the legality of the marriage of first
cousins in this State, and which on the final de-
cision by the Supreme Court, may affect the
legality of hundreds of such marriages. Very
few clergymen, or others having authority to
perform the marriage service, are aware that, in
1877. a law was passed whose intent it would
seem to be to prohibit the marriage Of first
cousins, but which, by lack of explicitness. has
left the question in doubt Up to 1877, the law
of the State explicitly prohibited the marriage.
first, where either party had wife or husband
living at the time; second, where one is white
and the other possessed of one eighth or more Of
negro blood; and, third, where either is insane
OF idiotic. The common law prevailed where no
other is provided, and under the common or
canonical law of England the marriage of first
cousins was not illegal In 1873, Section 1924
was added to the statutes, declares that all mar
riages prohibited by law on account of consan-
guinity, affinity ETC.. shall be absolutely void
without any legal proceeding This of course,
operates on the following statute of 1877:
Section 1924. Marriage is declared to be civil
contract into which males of the age of eighteen and
second cousins and not having q husband wife
living, are capable of entering.
The whole question it will be seen. is whether
the term mot of kin than second
cousins can be construed as prohibition. The
statute says certain persons may marry and
OILY by implication that others shall not I'm
der the common law the marriage of first cousins
was not void, but voidabe. and only during the
life of the parties. Such was the decision of
the judge in the case here, wherein the mother
sues to recover from the husband of her de-
ceased daughter certain property claiming to be
the heir-at-law on the ground that. the marriage
of first cousins was absolutely void
Blackstone says: ''In general all persons are
able to contract themselves marriage unless
they labor under some particular disabilities and
incapacities." 1t is, therefore. held that this
being natura. right the usual construction of
one thing expressed all others excluded cannot
apply because the rule of construction is equally
we'll established that you can enlarge but not
restrict natural rights by implication. Black
stone further says as to these disabilities: They
are OF two sorts; first such rs are canoncal and
therefore sufficient by the ecclesiastical laws to
avoid the marriage in the spiritual court but
these in our law only make the marriage voda-
BILE and not ipso facto void, until sentence of
nullity be obtained. OF this nature are prior
contracts, consanguinity or relation by blood,
and affinity or relation By marriage; and some par
| ticular corporal infirmites And these canpnical
disabilities are either grounded upon the express
| words of the divine law, consequently
! plainly deducibie from thence. But such mar
| riages not being void alb initio, but voidable
| only by sentence of separation, they es-
| teemed valid to all civil purposes. unless such
| separation is actually made during the life of
| the parties. For after the death of either Of
| them the courts Of common law will not suffer
| the spiritual courts to declare such marriages
to have been void because such declaration can
not now tend to the reformation of the parties .
| An instance is cited where the bishops court
| was proceeding to annul marriage after the
| death of the wife, who was former wife's
| sister, and the Kings court prohibited the an
! nulmeut, but permitted the punishment of the
| husband for incest. 1t is a fact not commonly
| known that the Levitcal law does not prohibit
| the marriage of first cousins.